Red tape entangles injured service members who can no longer deploy

Daniel Kinberg, a former Navy Corpsman who was diagnosed with an inflammatory joint disease and post-traumatic stress disorder after returning from Afghanistan in 2010.

Daniel Kinberg had not planned on leaving the Navy. The second class petty officer was a reservist who enlisted in 1994 and eventually served as a Navy Corpsman to Marines deployed in Afghanistan's Helmand Province from October 2009 to June 2010.

Kinberg, a medical specialist, was constantly under fire. A suicide bomber struck in a bazaar, killing one of Kinberg's closest friends, and he was the first to respond. When the vehicle of his sergeant major was struck by an improvised explosive device, he could not attempt a rescue as it burned. He was often approached by Afghans who needed medical attention for their injured or dying children.

The deployment took a physical and mental toll on Kinberg, who is 40 and lives in San Diego. "We were always fearing for our lives every second and not knowing if the next step you take is going to be your last," he told NBC News.

He returned from the deployment with terrible back pain, which he attributes to frequent dives for cover and daylong foot patrols in rugged terrain with a full combat load. He was soon diagnosed with ankylosing spondylitis, a disease characterized by inflammation in the spinal and pelvic joints. The disease can be hereditary, but Kinberg did not experience symptoms until during combat.

When a doctor said in June 2010 that he could not be deployed again as a result, it was a "tough blow." A few months later, after having trouble reintegrating, Kinberg was diagnosed with post-traumatic stress disorder.

The yearlong battle that followed, however, as Kinberg attempted to retire from the Navy with disability and medical benefits, was more difficult than he could have imagined. At first, the military denied him a retirement with full benefits, arguing that the PTSD and ankylosing spondylitis pre-existed his service.

Experts who appeal cases like Kinberg's say his is one of many in which the military may wrongly try to separate an injured service member without benefits. Even if a service member is given a favorable decision, the average wait in each of the services is a year or longer, and most are left trying to navigate in a bureaucratic system that is not always kind to those who will never deploy again.

Last month, the disability system was criticized in a Congressional hearing for the long waits. As of late July, there were more than 26,000 open cases across the Army, Air Force, Navy and Marine Corps. In the Army, which accounts for two-thirds of the caseload, service members wait the longest at an average of 427 days; the goal set by the Departments of Defense and Veterans Affairs is to process active-duty cases in 295 days.

Medical retirement has been under Congressional scrutiny since 2007, when several commissions revealed that service members were frequently denied legitimate disability benefits and that an outdated processing system resulted in waits as long as 540 days. Since then, policies issued by DOD as well as Congressional legislation have resulted in significant improvements, primarily the streamlined process known as the Integrated Disability Evaluation System (IDES), which allows DOD and VA to jointly assess medical conditions and disability ratings.

Veterans advocate Michael Parker, a former lieutenant colonel in the Army who estimates assisting on hundreds of disability cases in the past seven years, said that while the changes have led to better outcomes, many service members like Kinberg continue to be denied legitimate but costly benefits.

Service members often approach Parker, who is not a lawyer and does not charge a fee, after they're found fit to serve despite severe injuries, or if the military or VA has ruled the condition in question does not deserve a disability rating high enough to qualify for benefits; the threshold is 30 percent.

"Somebody will come to me and say, 'My case is broken, can you help me?' " Parker told NBC News. "Every day there is a new situation that is counter to taking care of wounded people."

Parker has seen cases in which the military "cherry picked" from a number of injuries, selecting the least aggravated one and assigning it a disability rating that did not qualify for full benefits upon retirement.

He has also seen a range of perplexing cases, including a combat Marine who in 2010 was first found unfit due to service-related disabilities, but not at a 30 percent rating. The decision was then reversed and he was found fit for duty, but he was subsequently separated without benefits. When he tried to re-enlist, the Marine was denied on the grounds that his conditions disqualified him for service.

Congress soon passed laws prohibiting the military from discharging a service member due to a condition for which he or she had been previously evaluated and found fit for duty. Parker said the legislation is important, but that the military has found different ways to withhold disability benefits; he has handled cases where service members are administratively discharged for a service-connected disability before they even enter or complete IDES.

Daniel Kinberg was prepared for a difficult process. “I never heard a good thing about it,” he said. “Everyone says this is a nightmare.”

Kinberg's medical conditions were assessed by a three-person physical evaluation board (PEB), which found him unfit for duty as a result of the ankylosing spondylitis and PTSD, but said that both conditions were pre-existing. Specifically, the board indicated that the PTSD may have been tied to his ankylosing spondylitis, not combat. His case was sent to VA to receive a disability rating, and it returned a different decision: the PTSD was service-connected and received a 100 percent rating, which would have allowed him to retire with full benefits.

The Navy, however, disagreed, and enforced its original finding that the conditions pre-existed service — without providing evidence to prove its case as required by law. Kinberg would be separated from the military with no DOD medical or disability benefits, though he would receive VA care and benefits.

"It’s a slap in the face," Kinberg said of the decision. "I know I’ll never be the same as I was before ... I used to be this happy guy and I don’t see me ever getting there."

With Parker's representation, Kinberg appealed the decision. First, Parker convincingly argued that neither condition was pre-existing, but then the PEB reversed its original decision and found that the PTSD did not make Kinberg unfit for duty, which again prevented him from receiving a rating high enough for DOD benefits.

In May, Parker successfully appealed that decision before the Navy's physical evaluation board in Washington, D.C. In the end, the board agreed that both conditions were service-connected and made Kinberg unfit for duty, awarding him a 100 percent rating for PTSD, and as a result, a full DOD medical retirement.

In very rare cases, DOD told NBC News, the military can "depart" from a VA rating when approved at a high level. DOD said it did not know of cases in which the military did not follow the VA finding, but there is also no requirement to report those incidences.

Jason Perry, a former Army captain in the Judge Advocate General Corps who now assists service members with disability retirement cases, told NBC News that despite improvements to the medical retirement process, the system still seems "arbitrary."

Often, Perry will see two cases with the same underlying facts, but different decisions. One service member will receive a high disability rating while another gets a substantially lower one.

DOD told NBC News that criteria for judgments differ across the services depending on the type of missions and fitness required of the service member.

Perry said, however, that the discrepancies are partly due to the subjectivity of individual doctors as well as the three-person panel that evaluates the merits of each medical retirement case.

Complaints like these are common on PEBforum.com, a website Perry founded that allows service members to glean intricacies of the process, ask other posters about their cases and learn how to avoid common pitfalls or mistakes.

Perry, who has handled 400 cases as a former Army captain and a for-hire lawyer over the past six-and-a-half years, doesn't believe those who serve on PEBs set out to "low ball" or deny benefits to service members. Instead, he thinks they're attempting to follow the rules, but often make errors in judging whether an injury is service-connected and is worthy of a full medical retirement.

Though designed to keep malingerers from taking advantage of the system, stringency for disability claims can prevent worthy cases of getting a proper ruling.

In Kinberg's case, he felt under constant scrutiny. While on medical hold, he was tasked with driving a shuttle for patients, a duty that too often triggered his PTSD symptoms of hyper-vigilance and irritability.

Instead, he signed up for vocational rehabilitation, a skills-based training program for those with service-connected disabilities, but that was cited as evidence by the PEB that his PTSD was not severe enough to make him unfit for duty. Yet, in Kinberg's opinion, it was the vocational rehabilitation that gave him a crucial "sense of fulfillment" to endure the yearlong wait for a decision on his case.

He also worried about taking advantage of community events and activities held for wounded warriors, fearing his participation might undermine his diagnosis in the eyes of the PEB.

"I didn’t do any of that stuff because I was already warned," he said, referencing advice given to him by other service members.

"It’s a long, drawn out process," Kinberg said of IDES and remaining on medical hold. "Unless you do something with your time there, it’s a very miserable existence. I know people who are suicidal because they don’t have anything going on in their life and they're just sitting in their room and going to doctor’s appointments."

In the July Congressional hearing, VA Secretary Eric Shinseki defended the length of the decision process, explaining that much of that time was necessary for wounded service members to convalesce and receive appropriate medical attention.

However, a report on IDES published by the Government Accountability Office in May found significant delays in completing medical examinations; in 2011, only 31 percent of active-duty cases met the 45-day goal. Officials told GAO that case loads were large and that there were not enough doctors to complete paperwork in a timely manner. The report noted that the Army was in the midst of doubling its staffing for medical evaluations to address the delays.

Neither Parker nor Perry want the timeline goals achieved at the detriment of getting the process right. However, Perry said, long waits can lead to frustration for service members who have no ability to plan for the future, whether it be lining up civilian employment, enrolling in college, or knowing where their children will attend school in a year.

While the delays receive the most attention, there also appears to be a dangerous disconnect between the wounded and their command in some cases.

The Recovering Warrior Task Force, a panel that gives DOD recommendations on policies related to the treatment of the injured, found in the course of conducting focus groups with wounded service members that they often encountered an "adversarial dynamic ... which distracts them from focusing on healing."

The task force wrote in a draft report earlier this year that the Army and Marine Corps might consider how to prevent transition staff from behaving in counter-productive ways, including acting or speaking to injured service members "in a demeaning or hostile way, accusing (them) of malingering in the course of their recovery, breeching privacy by discussing medical and personal matters ..."

Kinberg, who was among a handful of combat-wounded sailors in his medical hold unit of 50 people, witnessed that dynamic. Kinberg said his chain of command included activated reservists who had never been deployed and acted at times as though members of the unit were faking injuries.

Despite these troubling experiences, Kinberg is preparing to move on. The internship he secured through vocational rehabilitation has led to a job, which he will begin after being discharged from the Navy this month. Still, he can't quite fathom his experience in the disability retirement system.

"I thought some people weren’t doing something right," he said. "I did everything by the books, by the numbers and still they come back and say, 'Well you’re zero.' "